The General Court of the European Union confirms that Zalando qualifies as a “very large online platform”
Case T-348/23
On 3 September 2025 the General Court of the European Union ruled that Zalando’s designation as a “very large online platform” within the meaning of EU Regulation 2022/2065 on a Single Market for Digital Services is justified.
Summary
The General Court of the European Union dismisses Zalando’s appeal (T-348/23) against its designation by the Commission as a “very large online platform” (VLOP) within the meaning of Regulation (EU) 2022/2065 on a Single Market for Digital Services (DSA). The Commission had considered more than 83 million monthly active recipients, well above the threshold of 45 million. Zalando argued that only users exposed to third-party sellers in its “Partner Program” should be taken into account (≈30 million). The Court confirmed the Commission’s methodology for determining the existence of a VLOP and rejected arguments based on legal certainty, equal treatment, and proportionality.
Facts of the case
In April 2023, the European Commission published a Decision (Decision C 2023 2727) establishing the list of online platforms designated as VLOPs, including Zalando SE. VLOP is a category created by the DSA Regulation. It targets platforms with at least 45 million monthly active users in the European Union, representing approximately 10% of the EU population. This quantitative criterion distinguishes VLOPs from other online platforms, which are considered less likely to have a systemic impact. Designation as a VLOP entails the application of enhanced obligations in terms of systemic risk management, content moderation, and transparency.
Zalando brought an action before the General Court of the European Union, arguing that its platform should only be classified as an “online platform” with regard to its Partner Program (third-party seller activities). According to Zalando, its own direct sales activity (Zalando Retail) did not fall within the scope of the DSA. It therefore argued that the number of active recipients to be taken into account should be limited to users exposed to third-party seller content, i.e., approximately 30.8 million. In the absence of separate data provided by Zalando, the Commission had taken into account all 83 million declared monthly users.
Arguments of the applicants
Zalando, supported by bevh (Bundesverband E-Commerce und Versandhandel Deutschland eV), put forward several arguments:
- Insufficient threshold for the average monthly number of active recipients in the European Union (hereinafter AMNR)
Zalando asserts that the average monthly number of active recipients on its platform should only be around 30.836 million, since only users exposed to third-party sellers’ content as part of the Partner Program should be taken into account — this calculation is based on the share of gross product value generated by these sellers (37% of the platform). - Distinction between activities
It argues that its platform only constitutes an “online platform” with regard to the activity of third-party sellers (Partner Program). The direct sales service (Zalando Retail) would not be subject to the obligations of the regulation as a hosting service or online platform, since this service does not host information provided by third-party recipients. - Legal uncertainty/legal certainty
Zalando argues that the concept of “active recipient of an online platform” and the criteria for what constitutes “exposed” remain unclear. It argues that this makes its designation as a VLOP unpredictable and violates the principle of legal certainty. - Principle of equal treatment
It argues that the DSA regime treats comparable platforms differently, or different platforms identically, which is unjustified and unfair. - Principle of proportionality
Zalando considers that the obligations imposed on VLOPs are excessive and that there are less restrictive means of achieving the objectives of the DSA. In particular, it criticizes the idea of counting all users, even those who are not actually exposed, as disproportionate if the exposure is low. - Motivation/lack of motivation (Article 296 TFEU)
Finally, Zalando criticizes the Commission for failing to provide sufficient reasoning for certain key elements: why consider all recipients (including direct sales users) in the calculation of the NMM, and why consider all users to be “exposed.”
Assessment by the Court (General Court)
The Court examined each of these arguments and rejected them for the following reasons:
- Online platform/distinction between Retail and Partner Program
The Court acknowledges that Zalando Retail (direct sales) is not a hosting service/online platform within the meaning of the Regulation.
However, the Court considers that the Partner Program is indeed an online platform insofar as third-party sellers provide images, descriptions, etc., which are stored and disseminated via Zalando’s interface. The fact that Zalando can modify or supplement this content does not negate its third-party origin. - NMM calculation – Exposure of recipients
The Digital Services Regulation defines an “active recipient” as any person exposed via the online interface to the hosted information, including passively (e.g., by viewing or watching) and not only through interaction or transaction.
Zalando was unable to distinguish, among the ~83 million users of the global platform, those who had been exposed to third-party sellers from those who had not. In such a situation, according to the Court, the Commission was entitled to deem all users as having been exposed for the purpose of calculating the NMM.
Consequently, the NMM used by the Commission (83.341 million) is legitimate, and not the reduced value based on the proportion of sales by third-party sellers (≈30.836 million). - Legal certainty
The Court considers that the regulation provides sufficient criteria: the concept of exposure, the active/passive nature of recipients, publication requirements, and delegated acts.
The fact that certain technical or implementation details remain to be clarified is not sufficient to create insurmountable legal uncertainty. - Equal treatment
The Court does not see any arbitrariness in the treatment of Zalando: the DSA rules are applied uniformly to platforms exceeding the threshold for active recipients.
Zalando has not demonstrated the existence of other comparable platforms that have been treated differently in an unjustified manner. - Proportionality
The Court considers that the NMM criterion is appropriate for identifying platforms that pose a systemic risk, in particular due to exposure to illegal content.
Zalando has not proven that the obligations imposed on a platform exceeding 45 million recipients would be manifestly inappropriate or excessively costly compared to the benefits in terms of consumer protection or combating illegal content. - Reasons for the decision (Article 296 TFEU)
The Court considers that the Commission’s reasoning is clear as to why Zalando counts as an online platform for the Partner Program and why Retail users can be considered exposed (through the presence of images/information on pages that mix third-party sellers’ products and Zalando’s products).
The context, Zalando’s observations during the proceedings, and the publication of NMM data all make the decision sufficiently reasoned for Zalando to understand the reasons for its designation.
Practical consequences
The ruling has significant practical implications for online platforms and the digital market in the EU:
- Strict application of the $45 million threshold
Platforms that exceed this threshold are automatically subject to the enhanced obligations of the DSA (risk management, transparency, moderation, notifications of illegal content, etc.). Zalando will have to comply with all these obligations. - Deterrent effect and traceability requirement for hybrid platforms
Platforms combining direct sales and marketplaces risk having all their traffic taken into account for VLOP designation, even if only part of it comes from third-party sellers and even if it is impossible to distinguish between users who are actually exposed. This situation encourages the development of monitoring and transparency mechanisms to trace content and clearly separate content from third-party sellers, in order to avoid all users being counted as exposed. - Clarified legal certainty
This ruling clarifies certain concepts in the DSA: “exposed,” “active recipient,” “online platform,” and the distinction between host and platform. These are now more clearly defined by case law, which helps platforms and their respective legal advisors anticipate risks. - Impact on liability and costs
As a VLOP, Zalando will have to bear more costly obligations—audits, proactive moderation, transparency obligations, notifications, and possible sanctions. This may have a significant operational cost.
Conclusion
The ruling establishes a firm interpretation of the Digital Services Regulation: reaching more than 45 million monthly active recipients exposes a platform to significant obligations, even if only part of its activities relate to a marketplace or third-party partners. The Court rejected Zalando’s request to restrict the calculation of the MMR to users who are actually exposed to third-party sellers’ content, finding that Zalando had not demonstrated a reliable method for making this distinction. The principles of legal certainty, equal treatment, proportionality, and the requirements of justification are deemed to have been respected. For platforms in the digital sector, this ruling sends a clear signal: not only does user volume matter, but how exposure to third-party content is managed or traceable can make all the difference.
